# TORRES DE LIMA NETO v. THOMPSON

> District Court, D. New Jersey · December 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10269736

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10269736

## How later opinions describe it (automated extraction)

- affirming in APA case where defendants filed a motion to dismiss or, in the alternative, for summary judgment, and plaintiffs filed what they denominated a cross-motion for summary judgment, and district court granted summary judgment in defendants’ favor

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NELSON TORRES DE LIMA NETO,
Plaintiff,
v.
Civ. No. 20-00618 (KM) (JBC)
JOHN THOMPSON, District Director
for U.S Citizenship and Immigration OPINION
Services (USCIS) Northeast Region,
and PAULO CORREIA, Field Office
Director of the USCIS-Newark Field
Office,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Nelson Torres de Lima Neto, a non-citizen, applied to the United States
Citizenship and Immigration Services (the “Service”) for adjustment of his
immigration status to a lawful permanent resident. The Service denied his
application based on its interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(II) (which I
will call “(B)(i)(II)”), a provision that renders certain aliens inadmissible and
thus ineligible for adjustment of status. Neto1 seeks review and vacatur of the
Service’s decision under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706(2), and asks for declaratory relief under the Declaratory Judgment Act,
28 U.S.C. § 2201. The Service moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6) (DE 11), and Neto both opposes and moves for summary
judgment (DE 14).2 For the following reasons, the Service’s motion to dismiss is
DENIED and Neto’s motion for summary judgment is GRANTED.

1 The plaintiff refers to himself as “Neto.”
2 Certain citations to the record are abbreviated as follows:
DE = Docket entry number
Compl. = Complaint (DE 1)
I. BACKGROUND
A. Facts3
Neto, a Brazilian citizen, was lawfully admitted into the United States in
1993 on a tourist visa. (Compl. ¶¶ 11–12.) He overstayed his visa and was
ordered deported in 1994. (Id. ¶¶ 13–14.) However, he did not leave the United
States until 2000. (Id. ¶ 15.)
In 2002, Neto was again admitted to the United States on a tourist visa.
(Id. ¶ 17.) In gaining admission, he allegedly did not disclose that he previously
had been unlawfully present in the United States from 1994 to 2000. (App. 5.)
He has remained in the United States since 2002. (Compl. ¶ 18.)
In 2016, Neto applied to the Service for adjustment of his status to that
of a lawful permanent resident. (Id. ¶ 21.) Title 8, U.S. Code, § 1255 allows
certain aliens to apply to have their status adjusted to lawful permanent
residents. One precondition, however, is that the alien be “admissible to the
United States.” Id. § 1255(a). The Service denied Neto’s application,
determining that he was inadmissible. (Compl. ¶ 22.) He moved to reconsider,
but the Service denied that motion as well. (Id. ¶¶ 23–24.)
In explaining both denials, the Service specified that Neto was
inadmissible under (B)(i)(II), which provides that any alien who “has been
unlawfully present in the United States for one year or more, and who again
seeks admission within 10 years of the date of such alien’s departure or
removal from the United States, is inadmissible.” 8 U.S.C. § 1182(a)(9)(B)(i)(II).
The Service explained that Neto became inadmissible under (B)(i)(II) in 2002,
when he reentered the United States. (App. 3.) The Service further explained to
him that “[t]he fact that the Service did not discover your inadmissibility . . . at

App. = Appendix to Complaint (DE 1-1)
Serv. MTD = The Service’s Motion to Dismiss (DE 11-1)
Pl. Opp. = Neto’s Opposition to the Service’s Motion to Dismiss (DE 14)
Serv. Reply = The Service’s Reply Brief to Neto’s Opposition (DE 15)
3 The facts are not in dispute.
the time of your entry on May 10, 2002 does not preclude the finding of your
inadmissibility at this juncture.” (App. 6.)
B. Procedural History
In this action, Neto seeks judicial review under the APA and asks me to
(1) hold that the Service’s decision was “arbitrary, capricious, . . . or otherwise
not in accordance with law,” 5 U.S.C. § 706(2)(A); (2) issue a declaratory
judgment to that effect, and (3) order the Service to reopen his application for
adjustment of status and adjudicate it accordingly. (Compl., Prayer for Relief.)
The Service has moved to dismiss the complaint for failure to state a claim.
(Serv. MTD.)
In response, Neto filed what was styled as an “Opposition to Defendant’s
Motion to Dismiss and Motion for Summary Judgement for Non-Moving Party.”
Therein, he stated that the merits could be reached based on the Complaint
and administrative record attached thereto, and so he asked the Court to
“recharacterize” the Service’s motion to dismiss as one for summary judgment
or to grant summary judgment in his favor. (Pl. Opp. at 2.) The Service filed a
reply brief that did not take issue with Neto’s procedural requests. (Serv.
Reply.)
II. LEGAL STANDARD
A. Summary Judgment
I will take up Neto’s motion for summary judgment because (1) Neto has
moved for summary judgment on his sole claim, (2) that claim is purely legal,
based on the administrative record, and (3) the Service has not opposed Neto’s
request for summary-judgment treatment. “When a party seeks review of
agency action under the APA, the district judge sits as an appellate tribunal.
The entire case on review is a question of law.” Am. Biosci., Inc. v. Thompson,
269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks and citation
omitted). This is especially true when, as here, the “complaint, properly read,
actually presents no factual allegations, but rather only arguments about the
legal conclusion to be drawn about the agency action.” Rempfer v. Sharfstein,
583 F.3d 860, 865 (D.C. Cir. 2009) (citation omitted). In such a case, “[a] court
can fully resolve any purely legal question on a motion to dismiss, there is no
inherent barrier to reaching the merits at the 12(b)(6) stage,” and “there is no
real distinction in this context between the question presented on a 12(b)(6)
motion and a motion for summary judgment.” Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); cf. 5 U.S.C. § 706(2) (“To the
extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law . . . .”). Accordingly, “[s]ummary judgment
is the proper mechanism for deciding, as a matter of law, whether an agency
action is supported by the administrative record and consistent with the APA
standard of review.” Tomasi v. Township of Long Beach, 364 F. Supp. 3d 376,
389 (D.N.J. 2019) (citation omitted), aff’d, 796 F. App’x 766 (3d Cir. 2020).4
Moreover, taking up Neto’s motion for summary judgment complies with
the Rules. A party can move for summary judgment “at any time until 30 days
after the close of all discovery,” Fed. R. Civ. P. 56(b), so there is no issue with
deciding summary judgment now. Further, because Neto has explicitly moved
for summary judgment on the only claim in this case, this is not a case in
which the court’s sua sponte action could deny a party a fair opportunity to
respond. See generally Wolfington v. Reconstructive Orthopaedic Assocs. II PC,
935 F.3d 187, 195–96 (3d Cir. 2019). Indeed, the Service was given notice of
Neto’s motion and an opportunity to respond, yet did not voice any opposition
in its Reply.

4 The Third Circuit has not squarely addressed the principle that an APA case
can be resolved on summary judgment even when the motion is presented as one to
dismiss. But its disposition of APA cases suggests that it is receptive to the approach
outlined by the D.C. Circuit. See Comite De Apoyo A Los Trabajadores Agricolas v.
Perez, 774 F.3d 173, 187 (3d Cir. 2014) (reversing district court’s dismissal of APA
claim, vacating the agency action in the first instance, and directing that judgment be
entered for plaintiffs); Byrne v. U.S. Dep’t of Homeland Sec., 618 F. App’x 143, 145 (3d
Cir. 2015) (affirming in APA case where defendants filed a motion to dismiss or, in the
alternative, for summary judgment, and plaintiffs filed what they denominated a
cross-motion for summary judgment, and district court granted summary judgment in
defendants’ favor).
Turning to the standard of review, summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“While summary judgment is the proper mechanism” for APA cases like this
one, “the usual summary judgment standard does not apply” in the sense that
“the district court does not need to determine whether there are disputed facts
to resolve at trial” since “the administrative agency is the finder of fact.” Soccer
Ctrs., LLC v. Zuchowski, Civ. No. 17-1024, 2017 WL 4570290, at *4 (D.N.J. Oct.
13, 2017) (citations omitted). Instead, my task is to review the administrative
record and determine whether, as a matter of law, the Service’s action complied
with the APA. Id. at *4–5.
B. APA
“The APA ‘sets forth the procedures by which federal agencies are
accountable to the public and their actions subject to review by the courts.’”
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905
(2020) (quoting Franklin v. Massachusetts, 505 U.S. 788, 796 (1992)). The APA
empowers courts to review agency actions for whether they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). In doing so, courts only review the grounds invoked by the
agency when it made its decision. Regents, 140 S. Ct. at 1907.
“In some [APA] cases, an agency is alleged to have acted contrary to a
statutory command or prohibition . . . . In other APA cases, by contrast, the
agency is acknowledged to have discretion under the relevant statute, but is
alleged to have exercised that discretion in an arbitrary and capricious (that is,
unreasonable) manner.” Multicultural Media, Telecom & Internet Council v. FCC,
873 F.3d 932, 934 (D.C. Cir. 2017) (Kavanaugh, J.) (internal citations omitted).
Although the Complaint and Opposition make passing references to arbitrary-
and-capricious review, this case falls within the first category of APA cases, as
Neto claims that the Service’s denial of his application was contrary to, and
based on an incorrect interpretation of, (B)(i)(II).
In APA cases, a court is often called upon to apply the “Chevron
framework” and determine (1) whether the statute is ambiguous regarding the
question at issue, and if so, (2) whether the agency’s interpretation is
reasonable. Chevron, USA, Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43
(1984). However, the Third Circuit has forgone the Chevron framework when an
agency is not exercising rulemaking power delegated by Congress or employing
its “expertise in the formulation of substantive policy.” Sandoval v. Reno, 166
F.3d 225, 239 (3d Cir. 1999); see also Da Silva v. Att’y Gen. U.S., 948 F.3d 629,
634–65 (3d Cir. 2020). Likewise, the Supreme Court has forgone Chevron
analysis when the case presents a narrow question of statutory interpretation
which the courts are equipped to decide, as opposed to cases in which the
agency is filling a gap left by the statute. See INS v. Cardoza-Fonesca, 480 U.S.
421, 446–48 (1987). As the parties agree, this case presents “a pure question of
statutory construction for the court[] to decide,” so Chevron is inapplicable. Id.
at 446. Moreover, the Service’s interpretation comes in a letter denying an
application, so it is not the type of fully researched and reasoned decision that
is entitled to any deference beyond its power to persuade. See, e.g., Perez v.
Cuccinelli, 949 F.3d 865, 877 (4th Cir. 2020) (en banc) (Service decision in
letter not entitled to deference); Kaufman v. Nielsen, 896 F.3d 475, 484–85
(D.C. Cir. 2018) (same); Khalil v. Hazuda, 833 F.3d 463, 469 (5th Cir. 2016)
(same).5 Accordingly, my task is to apply ordinary tools of statutory
interpretation to determine whether the Service’s interpretation and application
of (B)(i)(II) is legally correct. See Da Silva, 948 F.3d at 634–65.

5 The Service does not claim that its interpretation is entitled to deference.
Because I find that the Chevron framework does not apply here, I need not address the
thorny question of whether an agency can waive or forfeit deference. See generally
Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 21–22 (D.C.
Cir. 2019) (per curiam). I would note that ultimately Chevron step one and a
straightforward statutory interpretation analysis would converge, in that both seek to
determine the plain meaning, if any, of the statute. See Sandoval, 166 F.3d at 240.
III. DISCUSSION
In Section III.A, I discuss the interpretation of (B)(i)(II). Because I find
that the Service’s decision is not consistent with (B)(i)(II), in Section III.B, I
discuss the appropriate remedy.
A. Interpreting (B)(i)(II)
1. The interpretive problem
(B)(i)(II) provides that any alien who “has been unlawfully present in the
United States for one year or more, and who again seeks admission within 10
years of the date of such alien’s departure or removal from the United States, is
inadmissible.” 8 U.S.C. § 1182(a)(9)(B)(i)(II).
Four pertinent scenarios suggest themselves. Each assumes an alien
who was unlawfully present in the United States for one year or more, and then
departed or was removed.
The first, which I will call Scenario A, is obvious and straightforward.
Alien A seeks admission to the United States in year 5, i.e., 5 years after her
departure. Because the 10-year waiting period has not elapsed, Alien A is
“inadmissible,” and her application is denied under (B)(i)(II).
The second, Scenario B, is equally clear. Alien B seeks admission to the
United States in year 11, i.e., 11 years after his departure. Because the 10-year
waiting period has elapsed, he is not “inadmissible” under (B)(i)(II). His
application is not barred by (B)(i)(II) and may be granted if he meets all other
requirements.
These first two scenarios closely track the statutory classification. But
now consider Scenarios C and D.
Alien C, like Alien A, seeks admission to the United States in year 5.
Because the 10-year waiting period has not elapsed, she is “inadmissible,” and
her application is denied. So, like Alien B, she applies for admission to the
United States in year 11. Her situation is like that of Alien B in every respect
except one: during the 10-year waiting period, she filed an unsuccessful
application for admission. So she should be treated like Alien B, unless the
filing of the application within the 10-year period is a disqualification—i.e.,
unless the “inadmissible” status attached when she applied in year 5, and is
permanent.
Alien D, like Alien A, seeks admission to the United States in year 5. The
10-year waiting period has not yet elapsed, so she is “inadmissible.”
Nevertheless, Alien D is granted admission (perhaps by mistake, or because
she failed to disclose the facts rendering her inadmissible). In year 11, she
seeks an adjustment of status, which depends on her being currently
“admissible.” (In this sense, it is the functional equivalent of seeking
admission.)6 As in the case of Alien C, the issue boils down to whether Alien
D’s (B)(i)(II) “inadmissible” status, though unrecognized in year 5, nevertheless
attached and persists beyond year 10.
The interpretive problem, as I see it, arises from the statute’s unspoken
premises. (B)(i)(II) seems to contemplate Scenarios A and B, and it seems to
assume a single application for admission that is correctly decided. It draws a
line between applications for admission filed within 10 years of departure, and
those filed later. It does not explain what it means, however, to say that the
alien who applies within the 10-year period is “inadmissible.” Of course it
means that a too-early application should be denied. But does it also mean
that once the too-early application is denied, the alien is then forever
inadmissible? And what is to be done with an alien whose application is not
denied, but who is erroneously admitted despite being notionally inadmissible?
Neto stands in the shoes of Alien D. He was unlawfully present for one
year or more when he overstayed his visa from 1994–2000. (Serv. MTD at 7; Pl.
Opp. at 5.) He then departed from the United States in 2000—but did not stay
“departed.” Well within 10 years of that departure, in 2002, he sought
admission. Thus, under the plain terms of the statute, Neto was “inadmissible”

6 “Seeks admission” means both applying for admission at the border, as Neto
did in 2000, and applying for adjustment of status from within the United States, as
Neto did in 2016. Matter of Rodarte-Roman, 23 I.&N. Dec. 905, 908 (BIA 2006).
when he sought admission in 2002, because the 10-year waiting period had
not elapsed. What creates the interpretive issue in this case is that Neto was
nevertheless admitted in 2002, and has apparently been in the United States
since then. The question is whether he is “inadmissible” now.
In 2016—16 years after his departure, and 14 years after his
readmission—Neto applied for an adjustment of status, which requires that he
be “admissible.” He urges that a plain reading of (B)(i)(II) establishes that its
bar is inapplicable: He departed in 2000, more than 10 years elapsed, and he
applied for adjustment of status in 2016. The Service acknowledges, as it must,
that his application in 2016 was not filed “within 10 years of the date of [his]
departure,” 2000. Nonetheless, the Service reasoned that, although actually
admitted in 2002, he was nevertheless “inadmissible” in 2002 as a result of
(B)(i)(II), and that his inadmissible status never changed thereafter. (See App.
6.)
One more point must be clarified. (B)(i)(II) has a limited function. It is not
a complete statement of grounds for grant or denial of admission. Rather, it
permits the Service to dispose of certain cases in a summary manner. It
imposes a 10-year categorical bar to admission, irrespective of the application’s
other merits, or lack thereof. So during the 10-year waiting period, the
application will be denied. After the expiration of the 10-year period, however,
the alien may be, will not necessarily be, admitted. The categorical bar of
(B)(i)(II) no longer applies, but any and all other grounds for exclusion may bar
admission. That Alien D (or Neto) misrepresented her status in year 5, for
example, may have adverse consequences, but that is a separate issue.
It is true that, in Scenarios C and D, the statutory bar may play out in
an unexpected fashion. It is not uncommon, however, for a statutory category
to be an imperfect proxy for the evil which Congress intended to reach. Based
on (B)(i)(II)’s (1) words, (2) place in the statutory context, (3) purpose, and
(4) interpretation by its implementing agency and the Third Circuit, I hold that
an alien is inadmissible only during the 10-year period following his or her
departure. Accordingly, the Service’s position that Neto was inadmissible in
2016 because he sought (and obtained) admission in 2002 is an unwarranted
extension of (B)(i)(II). That is not to say that he must be granted admission, but
if he is inadmissible, it is not because he is subject to the categorical bar of
(B)(i)(II).
Text
My starting point, of course, is the language of (B)(i)(II). Khan v. Att’y
Gen. U.S., 979 F.3d 193, 197 (3d Cir. 2020). Words derive meaning from
surrounding words, and courts avoid giving words any broader meaning than
their context can bear. See Giovanni v. U.S. Dep’t of Navy, 906 F.3d 94, 106 (3d
Cir. 2018). Here, the phrases “seeks admission” and “is inadmissible” are both
expressed in the present tense. Because of this parallelism, the most natural
reading of (B)(i)(II) is that an alien is inadmissible when the alien seeks
admission within the 10-year period—i.e., that an application for admission at
that time must be denied. To understand inadmissibility under (B)(i)(II) as
stretching beyond the 10-year period would strain the context of the words,
which address a specific, temporally limited situation.7
Time and tense are not the same thing. The phrase “is inadmissible” does
not refer to the literal present, i.e., the moment that the reader is perusing the
statute. Nor does it refer to the time that the drafter wrote it. It is the statutory
“present,” in the sense of the time at which the described event takes place and
is permitted, prohibited, or otherwise affected by the statute.8 The thought

7 The alternative interpretation requires us to read the statute to impose
inadmissibility not temporarily, for a specified 10-year period, but permanently, for a
certain class of people consisting of those who dared to apply for admission before that
10-year period had elapsed. The application before 10 years have elapsed would thus
become, not just grounds for denial, but a brand of permanent disqualification. If that
were the statute’s drastic intent, we would expect a far clearer statement.
8 In that sense, it has been written (we might say “it is written”) that a statute is
“always speaking.” See Goldfarb, Neal. (2013). “Always speaking”? Interpreting the
present tense in statutes. Canadian Journal of Linguistics/Revue canadienne de
linguistique. 58. 63-83. 10.1017/S0008413100002528. Linguistically, this quickly
gets us into deep water. What I am describing, however, is not highly specialized, but
a matter of familiar usage.
might be more clearly expressed as “is inadmissible during that 10-year
period.” But (B)(i)(II) is clear enough. Because it is patently concerned with
declaring certain persons inadmissible during that 10-year period, but not
thereafter, it makes sense to read “is inadmissible” to require denial of
applications for admission within that 10-year period only.9
The meaning of (B)(i)(II) becomes clearer by comparison with related
constructions in the statute. “[W]ord choice matters,” and “Congress knows
how to say such things when it wants to,” United States v. Hodge, 948 F.3d
160, 163 (3d Cir. 2020), a comparative principle that applies a fortiori when
applied within the same statute, Riccio v. Sentry Credit, Inc., 954 F.3d 582,
587–88 (3d Cir. 2020) (en banc). Here, Congress used language of permanency
in other parts of § 1182(a), language that easily could have been transplanted
to (B)(i)(II) to accomplish the same result, if that had been intended. For
example, any alien who “has engaged in terrorist activity,” § 1182(a)(3)(B)(i)(I),
or “has engaged in the recruitment or use of child soldiers,” § 1182(a)(3)(G), is
inadmissible—by implication, forever. By using the past tense, Congress has
indicated that any former terrorist activity or use of child soldiers renders an
alien inadmissible thereafter. The present tense, used in (B)(i)(II), does not carry
the same connotation. The past always remains the past; not so, the present.
Relatedly, Congress demonstrated that it knows how to bar aliens
comprehensively by the simple expedient of employing both the past and
present tense. Elsewhere, the statute provides that any alien who “is coming to
the United States . . . to engage in prostitution, or has engaged in prostitution”
is inadmissible. § 1182(2)(D)(i). The upshot of these provisions is that Congress
knows how to impose inadmissibility on a perpetual basis, based on something
the alien has done.

9 For those who would consult legislative history, the Conference Committee
Report for the legislation that would become (B)(i)(II) states that “[a]n alien unlawfully
present for 1 year or more who voluntarily departs is barred from admission for 10
years.” H.R. Rep. No. 104-828, at 207 (1996) (Conf. Rep.). Thus, this Report tends to
confirm that the admission bar operates only for ten years.
Congress did not do that in (B)(i)(II). Rather, Congress used the present
tense (“seeks admission”) when describing the act that renders an alien
inadmissible, and it specified a time frame. Differing verb tenses within one
statute are significant. See Khan, 979 F.3d at 198 (“Congress’s use of different
verb tenses in each of the clauses . . . reflects its intent for the two clauses to
define separate requirements.”). The use of only the present tense, in contrast
to tenses used elsewhere, reinforces the notion that an alien is inadmissible
under (B)(i)(II) at that time—i.e., when seeking admission within the 10-year
period. If Congress wanted to say that the past act of having sought admission
within the 10-year period renders an alien inadmissible forever after, as the
Service would have it, Congress could have said “seeks admission or has
sought admission.” Because Congress did not do that, and because reading
inadmissibility in conjunction with the present tense of “seeks admission” is
more natural, I reject the Service’s reading of the statute’s text.10
The text of the statute, then, most naturally reads as a categorical bar to
admissibility which applies for 10 years after the alien departed, but not
thereafter. As to comings, goings, or other events during that 10-year period,
the statute is silent.
Context
I next consider the broader statutory context in which (B)(i)(II) appears,
for “[s]tatutory context can suggest the natural reading of a provision that in
isolation might yield contestable interpretations.” Monzon v. De La Roca, 910
F.3d 92, 102 (3d Cir. 2018) (citation omitted). The section containing
subparagraph (B)(i)(II) comprises a gradated scheme, in which (B)(i)(II) occupies
an intermediate position, short of the lifetime ban for more serious violators of
the immigration laws which is contained in the following subparagraph (C).

10 The only court to have faced a similar issue reads the statute as Neto does here.
See Kanai v. U.S. Dep’t of Homeland Sec., No. 2:20-cv-05345-CBM-(KSx), 2020 WL
6162805, at *2 (C.D. Cal. Aug. 20, 2020). Kanai is discussed in section III.A.5, infra.
The subparagraph at issue, (B)(i)(II), is part of 8 U.S.C. § 1182(a). The
numbered subsections of Section 1182(a) describe classes of aliens who are
“inadmissible” and thus “ineligible to receive visas and ineligible to be
admitted.” One such class, described in subsection (a)(9), consists of “aliens
previously removed” from the United States.
Subsection (a)(9) in turn is divided into subparagraphs. One of those is
subparagraph (B), the one at issue here, titled “Aliens unlawfully present.”
Another, subparagraph (C), applies to “Aliens unlawfully present after previous
immigration violations.” (Emphasis added.) It stands to reason that the
subparagraph (C) class might merits harsher treatment than the subparagraph
(B) class, and a decision of the Board of Immigration Appeals (“BIA”) lends
support to that view. Matter of Rodarte-Roman, 23 I.&N. Dec. 905, 909 (BIA
2006). As described in Rodarte-Roman, subsection (a)(9)’s subparagraphs
proceed stepwise in order of severity; they “seek to compound the adverse
consequences of immigration violations by making it more difficult for
individuals who have left the United States after committing such violations to
be lawfully readmitted thereafter.” Id.11
Accordingly, Subparagraph (B) “provides for the temporary
inadmissibility of aliens who have been unlawfully present in the United States
for certain continuous periods and who are seeking admission after having
departed,” while subparagraph (C) “provides for the permanent inadmissibility

11 The relevant portions of subparagraphs (B) and (C) are phrased similarly. The
chief distinction lies in the applicability of the 10-year waiting period to persons
illegally within the United States for more than one year. Subparagraph (B) provides
that a person who seeks readmission within 10 years after departure or removal “is
inadmissible.” Subparagraph (C) provides that such a person “who enters or attempt
to reenter the United States without being admitted is inadmissible,” without
specifying a waiting period. Because no time limit is specified, the implication would
be that such a person is inadmissible whenever he or she enters or attempts to enter
the United States. Later in subparagraph (C), there is a narrow exception for an alien
seeking readmission more than 10 years after departure, if the Secretary has
consented to the alien’s reapplication for admission. 8 U.S.C. § 1182(a)(9)(C)(ii). The
implication appears to be that the exception is available only to an alien applying for
admission, after 10 years, with the Secretary’s advance permission.
of any alien who enters or attempts to reenter the United States without being
admitted after a prior removal.” Id. (emphasis added).
“[A]liens inadmissible under [subparagraph (C)] who attempt to enter or
reenter without being admitted may be more culpable than those under
[subparagraph (B)] who are seeking admission.” Cheruku v. Att’y Gen. U.S., 662
F.3d 198, 207 (3d Cir. 2011). Thus, it is subparagraph (C) which imposes the
most severe consequence, permanent inadmissibility, on the most culpable
violators. To read (B)(i)(II) as imposing the same punishment as subparagraph
(C) would not be consistent with the expressed views of Congress that aliens
qualifying for subparagraph (B) are a step below aliens qualifying for
subparagraph (C) in culpability.
In sum, I find that the Service’s current interpretation is in considerable
tension with that statutory scheme. Generally speaking, subparagraph (C)
imposes permanent inadmissibility on past violators of the immigration laws;
subparagraph (B) imposes the lesser sanction of inadmissibility for 10 years on
less culpable persons. The Service’s position—in effect, “once inadmissible,
always inadmissible”— would render Neto permanently inadmissible under the
nominally more lenient subparagraph (B). In the context of subsection (a)(9)’s
gradated scheme, a lifetime ban for those who fall under subparagraph (B)
would be anomalous.
Purpose
I next consider whether my interpretation is consistent with the statute’s
purpose, or would produce absurd results. Vooys v. Bentley, 901 F.3d 172, 192
(3d Cir. 2018) (en banc). Most generally, “the provisions of § 1182(a)(9),
including the ten-year bar, were intended to deter aliens who had accrued
unlawful presence and then left the United States from later seeking
admission.” Cheruku, 662 F.3d at 207. “It is recidivism, and not mere unlawful
presence, that section [(a)(9)] is designed to prevent.” Rodarte-Roman, 23 I.&N.
Dec. at 909.
Setting aside the particulars of Neto’s case for a moment, the Service’s
position does not very clearly further the statute’s purpose. Now there are clear
cases; I refer to Scenarios A and B. (See Section III.A.1, pp. 7–8, supra.) These
bespeak a statutory purpose to withhold admissibility on a categorical basis for
10 years after departure, but permit it thereafter. What (B)(i)(II) does not do,
however, is impose a permanent ban on anybody.
The statute can be extended to Scenarios C and D only by distorting its
text and attempting to implement some more general sense of its purpose. (See
Section III.A.1, pp. 7–8, supra.) Such an approach, I believe, exceeds the
bounds of prudent statutory construction. Consider Alien C, for example, who
departed at the beginning of year 1, unsuccessfully sought admission in year 5,
waited, and reapplied for admission in year 11. It does not advance the
statute’s purpose—understood as a 10-year bar or waiting period—to continue
to bar Alien C from admission in year 11. Alien D differs from C in that her
application for admission in year 5 was successful, before she went on to apply
to adjust her status in year 11. Her status-adjustment application still
conforms to the words of the statute, however, in that it occurs more than 10
years after she departed. What makes us uneasy is that she should not have
been admitted in year 5—but that is a separate problem. We cannot fix that
separate problem by grafting onto (B)(i)(II) a judicially-created doctrine that,
where the application is wrongly granted, as opposed to denied, the alien’s
inadmissible status should be deemed permanent. On that view, (B)(i)(II) would
operate as a punishment with permanent effects, rather than as a time-limited
deterrent. That is inconsistent with both its wording and its evident purpose.
See Aguilar-Enriquez v. Holder, 492 F. App’x 511, 517–18 (6th Cir. 2012)
(“[(B)(i)(II)] only punishes an alien by barring that alien from applying for
adjustment of status for 10 years.”). Applying (B)(i)(II)’s bar only during the ten-
year period is consistent with the statute’s purpose in most if not all instances,
and a few awkward in-between cases (perhaps remediable by other means)
should not be used as a basis to distort its interpretation.
I will consider in addition whether my interpretation of the statute leads
to an absurd result in this case, i.e., one that casts doubt on that
interpretation’s correctness. Mr. Neto, an alien, sought admission during the
10-year period, in 2002 (two years after his departure). But instead of being
deemed inadmissible, as the statute contemplates, he was admitted.12 What
should have happened was denial of admission.
Still, some level of illegal presence is a given; far from being an automatic
or permanent disqualification, it is the very premise for application of (a)(9)
itself, and (B)(i)(II) in particular. Mr. Neto waited for 16 years after his 2000
departure to apply for adjustment of his status to a lawful permanent resident.
Although that period well exceeds the 10-year statutory waiting period, he
spent most of that period inside, not outside, the country, as a result of the
erroneous grant of his application to be admitted in 2002.
Now admittedly, this specific situation may not have been addressed by
the statute’s drafters. Applying the statute literally to this situation may even
be bad policy. If so, the legislature, not the court, should fix it. “To depart from
a statute’s plain meaning today, the text must dictate a result so unreasonable
that it amounts to an absurdity.” Riccio, 954 F.3d at 588 n.2. That is a “high
bar,” as “[v]irtually all laws would be absurd if judged by whether they
accomplish a perfect solution to an underlying legislative concern.” Id. at 589
(citation omitted). The text, context, and purpose of (B)(i)(II) all indicate that its
bar on admission applies only to the 10-year period. Applying (B)(i)(II)’s plain
meaning to the facts here may reveal a statutory blind spot where an alien is
accidentally admitted. Yet a gap in the statute is not the same thing as an
absurdity. See In re Visteon Corp., 612 F.3d 210, 234 (3d Cir. 2010) (“That [the
statute] is a partial solution to congressional concerns in no way converts it
into an absurdity.”). Indeed, applying the Service’s interpretation to avoid this

12 Because, according to the Service, he failed to reveal his prior unlawful
presence and order of deportation, and the Service apparently failed to detect it on
their own.
blind spot would thwart the statute’s text and purpose. At bottom, (B)(i)(II) is a
“specific bar[] to admissibility” under limited circumstances. Cheruku, 662 F.3d
at 207 (emphasis added). That it does not capture the particular situation here
does not evince any absurdity—only the reality that, like many statutes, its
plain meaning is incapable of addressing every situation. See Visteon, 612 F.3d
at 234.
To the extent Mr. Neto’s case is anomalous, the anomaly is not so much
a product of some absurdity in the statute as it is a product of a mistaken
decision to admit him in 2002. Either because (1) Neto did not disclose his
prior unlawful presence, or (2) the Government, at the time of his admission,
did not catch his prior unlawful presence (or both), Neto was admitted. (B)(i)(II)
does not contemplate this situation because it assumes that, when an alien
“seeks admission” in the 10-year period, he will be properly denied admission.
The result of interpreting the statute in Neto’s favor produces a result that may
be unanticipated, but is not absurd, and it does not bespeak a legislative
failure to guard against an obviously absurd result. A court cannot rewrite a
statute merely because the legislative means are not a perfect fit for the
legislative ends.
Interpretation by other tribunals
I consider whether binding case law of the Court of Appeals dictates a
result. It does not, but it does suggest that a literal approach to the statute’s
10-year bar is the correct one.
To the limited extent it has interpreted (B)(i)(II), the Third Circuit has
treated it straightforwardly, as creating a 10-year period of inadmissibility,
running from the alien’s departure. Construing (B)(i)(II) in relation to a question
not presented here, the Third Circuit explained that the statute creates a “ten-
year bar” and provides that “an alien with a one-year period of unlawful
presence in the U.S. would not be eligible for consular admission and
inspection at all during the applicable bar period without a waiver of
inadmissibility.” Cheruku, 662 F.3d at 207 (emphasis added). Therefore, the
Third Circuit, albeit in passing, indicated that (B)(i)(II) bars admission only
“during the applicable bar period,” ten years from a date of departure.
I also consider how the BIA’s constructions of (B)(i)(II) illuminate the
statute. See County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1474
(2020) (in interpreting a statute that an agency administers, courts consider
the agency’s views and prior application, even when Chevron is inapplicable).13
In one case, Rodarte-Roman, the BIA, much like the Third Circuit,
expressed a general sense that (B)(i)(II) does no more than impose a 10-year
ineligibility period. There, the BIA addressed whether, under (B)(i)(II), the entire
one year of unlawful presence must precede the departure. 23 I.&.N. Dec. at
908. The BIA held that it must: “an alien’s departure from the United States
triggers the 10-year inadmissibility period specified in [(B)(i)(II)] only if that
departure was preceded by a period of unlawful presence of at least 1 year.” Id.
at 909. In construing (B)(i)(II), the BIA reasoned that (B)(i)(II) is intended to
create a “temporary” period of inadmissibility and so operates in a literal way:
first, an alien accrues one year of unlawful presence, then he departs, and then
he seeks admission within 10 years. At the time he seeks admission, he is
inadmissible. Id. The words of the statute are read literally, even if the tribunal
thinks it would make just as much sense to apply the statute to aliens who left
before accruing a year of unlawful presence: “Congress made departure . . . the
event that triggers inadmissibility.” Id.; see also id. at 910.
Rodarte-Roman thus evinces an understanding by the BIA that (B)(i)(II)
creates a temporary bar of inadmissibility, running 10 years from the date of
departure (preceded by one year of unlawful presence). The BIA’s approach in
Rodarte-Roman stresses a literal reading of (B)(i)(II): a straightforward timeline
of unlawful presence, departure, and inadmissibility for 10 years.

13 The BIA’s interpretations of the immigration statutes are entitled to deference
when they come in a precedential decision. Cheruku, 662 F.3d at 202. The parties do
not dispute that Rodarte-Roman is entitled to due consideration.
The only tribunal to have faced facts like Neto’s, in the context of a very
closely allied legal issue, read the statute much as Neto does here. In Kanai v.
U.S. Department of Homeland Security, the plaintiff-alien entered the U.S. in
1996 on a visa, overstayed that visa, departed in 2003, entered the U.S. again
in 2005 on a visa, overstayed that visa, and applied to adjust her status some
17 years after her departure, in 2020. No. 2:20-cv-05345-CBM-(KSx), 2020 WL
6162805, at *2 (C.D. Cal. Aug. 20, 2020); DE 24, at 1.The Service denied her
application, reasoning that, although her period of inadmissibility began to run
from 2003 (her departure), that period was tolled by her “substantively
unlawful” admission in 2005 and subsequent unlawful presence in the
country. DE 24, at 2. The court rejected the argument that (B)(i)(II)
contemplates tolling of the 10-year period based on an intervening, unlawful
readmission to the United States. 2020 WL 6162805, at *3. Rather, the court
reasoned, the plain language of the statute entailed that the plaintiff was
inadmissible for 10 years following 2003; because she applied for adjustment of
status in 2020, well after that period expired, she was not subject to the
(B)(i)(II) bar.
Kanai confirms my own plain-text reading of (B)(i)(II). The statute simply
does not contemplate or address an alien’s readmission following “departure”
or provide that readmission affects the 10-year ineligibility period.14

14 Instead of arguing that Neto’s 2002 admission tolled the period of
inadmissibility, as in Kanai, the Service now reasons that the 2002 admission
rendered Neto inadmissible from that day forth, regardless of when he applied for
admission again. I therefore do not consider tolling per se, because that was not the
basis of the agency’s decision regarding Neto. See Regents, 140 S. Ct. at 1907. The
issue is, however, closely parallel.
Kanai indicates, at a minimum, that the Service has not been completely
consistent in its application of (B)(i)(II) to deny applications on similar facts. This
inconsistency cuts against deferring to the Service’s interpretation. See Hayes v.
Harvey, 903 F.3d 32, 46 (3d Cir. 2018) (explaining that one of the “most important
considerations” in deciding whether to defer to an agency’s interpretation otherwise
not afforded Chevron deference is whether the interpretation “‘is consistent and
contemporaneous with other pronouncements of the agency” (citation omitted)).
The Service argues that a court in this District previously interpreted (B)(i)(II) in
Shah v. Thompson, Civ. No. 11-3082, 2015 WL 113339 (D.N.J. Jan. 8, 2015), and that
* * *
In sum, the text, context, purpose, and prior interpretations of (B)(i)(II)
persuade me that that the period of ineligibility runs from the date of
departure, and that 10 years means 10 years. Accordingly, the Service’s denial
of Neto’s application was “not in accordance with law,” 5 U.S.C. § 706(2)(A),
because the act of seeking admission in 2002 does not furnish sufficient
reason to find Neto inadmissible under (B)(i)(II) in 2016.
B. Remedy
I therefore address the question of remedy. The APA empowers courts to
“set aside” unlawful agency action, § 706(2), so the ordinary course is to
“vacat[e] invalid agency action and remand[] the matter to the agency for
further review.” Comite De Apoyo A Los Trabajadores Agricolas v. Perez, 774
F.3d 173, 191 (3d Cir. 2014). The right course here is to vacate the Service’s
denial, declare it unlawful, and remand to the Service for “application of the
correct legal test.” MCPC, Inc. v. NLRB, 813 F.3d 475, 490 (3d Cir. 2016).
I decline to go any farther, as Neto might urge; generally, it is not a
court’s role to direct the agency how to act. Rather, a court’s role is to review
the agency’s decision and, if it cannot be sustained, remand to the agency. See
Regents, 140 S. Ct. at 1907–08; see also INS v. Orlando Ventura, 537 U.S. 12,
16–17 (2002) (“This [remand] principle has obvious importance in the
immigration context.”). Moreover, to the extent Neto seeks injunctive relief, that
relief is effectively already provided by the vacatur and remand. If Neto is
“dissatisfied with [the Service’s] remedy [on remand], [he] would always have
the option to seek review” of that decision in a new action under the APA.
Bennett v. Donovan, 703 F.3d 582, 589 (D.C. Cir. 2013). For that reason,
courts decline to retain jurisdiction after vacating and remanding, and I will do
so as well. E.g., Navajo Nation v. Azar, 302 F. Supp. 3d 429, 441 (D.D.C. 2018).

Shah’s interpretation forecloses Neto’s claim. (Serv. MTD at 11.) Shah is inapplicable,
however, because there, the plaintiff did not wait out the ineligibility period, but filed
an application for adjustment of status within 10 years of her departure. 2015 WL
113339, at *1, 4.
Remand is doubly appropriate because removal of the (B)(i)(II) categorical
bar is not equivalent to a finding that the Service must approve Neto’s
application. It simply frees the Service to consider all other grounds to grant or
deny the application. Put another way, there may be a reason to deny Neto’s
application, but (B)(i)(II) is not it.
IV. CONCLUSION
For the reasons set forth above, the Service’s motion to dismiss is denied,
and Neto’s motion for summary judgment in the alternative is granted.
A separate order will issue.
Dated: December 10, 2020

/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269736. Public record. Not legal advice.